ASHOK B JAIN Vs. SHANTILAL SHAH

JUDGEMENT

(1.) APPEAL (Lodging) No.924 of 1997 impugns the order dated 21st July, 1997 where under pending the disposal of the suit, the Court Receiver was appointed as Receiver in respect of the properties described in exhibits 'C' & 'D' to the plaint. The Court Receiver was directed to submit his report to the Court with regard to the persons who are in possession of the properties described in the aforesaid exhibits. Certain ancillary directions were also given. It is relevant to notice that, in para 3 of the order, it is stated that the learned Advocates appearing for both the parties stated that they have no objection whatsoever if the property is made custodia legis and the Court Receiver is appointed in respect of the property as prayed for. Undoubtedly, the defendant no.1 was not present during these proceedings. It is relevant to notice that the defendants no.1, 3 and 4 are brothers and the defendant no.5 is the brother-in-law of the defendant no.1.

(2.) SUBSEQUENT to the passing of this order, the defendant no.1 took out a Notice of Motion expressly under section 9A of the Code of Civil Procedure with a request to dismiss the suit as the suit is not maintainable under the provisions of section 69 of the Indian Partnership Act. It was also prayed that the suit be dismissed on the ground that no notice to the Registrar of Co-operative Societies Act as contemplated under section 164 of the Maharashtra Co-operative Societies Act has been given and pending the disposal of this Notice of Motion, all interim orders, including the order passed on 21.7.1997 be vacated. On this Notice of Motion, the learned Judge in his order dated 23.9.1997 observed that the Notice of Motion is taken out raising objection to the maintainability of the suit. The learned Judge took into consideration the fact that though the defendant No.1 was not present before the Court, the Court Receiver was appointed by consent of those defendants who were present. The learned Judge also took notice of the fact that the Court Receiver was merely directed to submit his report on the aspect of persons in actual possession of the property. When the counsel for the defendants contended that if an injunction is obtained by practising fraud then it should be vacated immediately, the learned Judge observed that, in his opinion, the matter requires to be heard at length after the plaintiff files his affidavit-in-reply. The learned Judge expressed his opinion that the order appointing Court Receiver is not prejudicial to the defendants. The learned Judge, however, directed the Court Receiver not to take physical or formal possession of the property until the Notice of Motion taken out by the defendant no.1 is disposed of. Both these orders are challenged by filing the aforesaid appeals.

(3.) READING the provisions of section 9A of the Code of Civil Procedure, we are of the opinion that, in such a case, until the issue is decided, the Court has ample jurisdiction to pass such ad-interim or interim orders as are required. In that behalf, we are in full agreement with the observations of the learned Judge that, in fact, the impugned order, viz., the appointment of Receiver and submission of his report on the factual state of affairs does not, in any way, prejudice the defendant no.1. It requires to be reiterated that the defendant no.1 is closely related with the other defendants who, in fact, agreed to the order of appointment of Receiver.